Symposium on Prosecuting Heads of State for International Crimes: Eroding Impunity – How the Groundwork of the Philippine Human Rights Community Met Shifting Political Tides

[Ruby Rosselle ‘Ross’ Tugade is a Filipino lawyer and a doctoral researcher at the Faculty of Law & Justice, UNSW Sydney. She is admitted to the List of Assistants to Counsel in the ICC]

In the days leading up to the confirmation of charges hearing of former Philippines President Rodrigo Duterte before the International Criminal Court (ICC), public speculation arose as to who would be the next subject of an arrest warrant from the Court. Such speculations came with the Pre-trial Chamber’s release of the Public Lesser Redacted Version of the Document Containing Charges naming as co-perpetrators, among others, two sitting Senators of the Republic, a former Secretary of Justice, and former high-ranking police officers. Duterte and most of the co-perpetrators of the      “Common Plan” go way back to his years as Davao City mayor, a post he held for a cumulative twenty-two years. The Office of the Prosecutor (OTP) is investigating incidents in the Philippines from 2011 to 2019, the period within which the country was a State Party. As formulated by the OTP, the common plan refers to the agreement amongst co-perpetrators to “’neutralise’ alleged criminals through violent crimes including murder.”

Human Rights Watch (HRW) in 2007 described Duterte’s Davao as a landscape with “killers roaming the streets with the comfort of state-protected impunity”, while the local government claimed total peace and order. Later in his presidency, Duterte justified his anti-criminality campaign under the guise of eradicating the “scourge of drug dealers” in the country while in reality targeting those who lived in poverty in urban centres. The HRW report prompted the Philippines’ constitutional Commission on Human Rights (CHR) — then under the leadership of Leila De Lima — to launch a probe in 2009 into the summary killings allegedly committed by the “Davao Death Squad”. De Lima, later elected senator, was incarcerated during Duterte’s regime for drug charges, which were eventually dismissed. The bogus cases against De Lima were a frightful display of Duterte’s attack on human rights advocates. At the height of Duterte’s power, the State ramped up the repression of dissent and political opposition, resulting in what the UN observed as a shrunken civic space, including attacks on the press, the legal profession, and an observable chilling effect on political expression. His stranglehold on political institutions was apparent, including a deferential Supreme Court on his side. Duterte had packed the Court with appointments and the result was apparent, as his government won all controversial political cases brought before it. He also warned the CHR — itself a constitutional innovation after re-democratization — to not meddle in his anti-drug campaign under the threat of defunding the agency.

Duterte seemingly built a fortress that would remain impenetrable years after his term, thus ensuring impunity. His arrest for crimes against humanity and the ICC’s investigations on long-term allies have seemingly rattled the stability of this fortress. Thus, for those who lost multiple family members to Duterte’s ruthless governance in Davao and in the nationwide “War on Drugs”, hope remains for accountability in the face of a still-powerful Duterte family and political brand. As pointed out elsewhere, Duterte’s arrest reveals the “delicate balance” between law and politics of international mechanisms and domestic institutions. In this vein, the ICC proceedings were able to move forward because an advantageous political opportunity presented itself to the sitting Marcos Jr. government in the form of Duterte’s arrest. In contemporary Philippines, prosecuting a former Head of State before an international tribunal will always be read on a political register, with legal arguments on State sovereignty and the effects of the Philippines’ 2019 withdrawal from the Rome Statute wielded to fuel partisan feuds. Yet while Duterte’s arrest was elicited by the political fallout of President Ferdinand “Bongbong” Marcos Jr. and Vice President Sara Duterte, crossing the necessary threshold for the issuance of the warrant would have been impossible without the prior groundwork of the human rights community.

The Emergence of “Dutertismo” in a Re-Democratized Era

Duterte’s rise to national prominence unraveled the contradictions, if not hypocrisies, of the liberal political and constitutional order inaugurated after the fall of the dictatorship of Ferdinand Marcos Sr. in 1986. While “Dutertismo” struck viscerally with vulgar jokes and obscene remarks, there was no denying the political success of his style of politics. Thus, as progressives decried what Duterte’s crude politics represented on a moral plane, his rhetoric — especially directed against human rights — was wildly successful for being “subversive” and “in the service of an autocratic end.” On one level, Duterte challenged the “decency rhetoric” insisting on manners and propriety which he attributed to liberal elites, tagged as “oligarchs”, while he himself was an “irreverent outsider.” In practical terms, Duterte promised peace and order at all costs, even if it meant, in his own words, fattening the fish in Manila Bay with corpses of criminals. With his 2016 presidential victory, he scaled up the Davao model of fighting criminality with the “War on Drugs” against the civilian population at large, mainly implemented through the Philippine National Police. State numbers claim around 6,000 “Drug War” related deaths, while civil society projects figures as high as 30,000.

The political and legal system in place since the ratification of the 1987 Constitution placed a premium on human rights, social justice and compliance with international law. Duterte’s regime confronted the Philippines’ continued observance of these political and legal values. Under his presidency, the country withdrew from the Rome Statute and discredited international human rights by, for instance, dismissing it as Western propaganda, signaling a weakened commitment to international legal institutions. Historically, the Philippines’ relationship with international criminal law has been ambivalent, with concerns of national sovereignty coloring any discussion of accountability before an international tribunal. Duterte’s public contempt for international mechanisms was seen through his attacks against UN Special Rapporteur Agnes Callamard and then-ICC Prosecutor Fatou Bensouda. 

Despite the carnage caused by Duterte’s policy, he ended his term in 2022 with an “excellent” net satisfaction rating from the public. His post-presidency popularity directly contributed to his daughter’s victory in the vice-presidential race, garnering 61.53% of the votes in a plurality election. Vice President Sara Duterte ran on the “Uniteam” ticket with President Marcos Jr., himself on record denying the atrocities under his father’s rule. VP Duterte has appeared to replicate the political temperament of her father, going public with brazen, public threats against Marcos Jr.’s life in the heels of the “Uniteam” fallout. To date, VP Duterte has avoided an impeachment proceeding and remains active in marshalling support for her father across different Philippine overseas communities. The political currency of the Duterte brand remains strong, showing the enduring challenges in pursuing prosecution against Mr Duterte. In his opening statement in the ongoing ICC proceedings, victims’ lawyer Joel Butuyan warns that dismissing Duterte’s charges may turn him into a “conquering hero” in a country still teeming with “Duterte clones.”

The Strength of Civil Society in the “War on Drugs”

Since the early days of the Duterte administration, communications to the ICC-OTP were transmitted by Filipino advocates, then under credible threat from repressive State organs. The Court’s jurisdiction was unsuccessfully contested by government representatives of the Marcos Jr. administration in 2023, and the issuance of the warrant of arrest came in March 2025 after the ICC reviewed the existing evidence. Duterte was arrested and surrendered to the ICC within five days. After a series of filings by the Defence to seek interim release and raise issues on Duterte’s fitness to stand trial, dismissed by the Court, Pre-Trial Chamber I concluded the confirmation of charges hearings last February 27, and will render its decision within 60 days. Families of victims were present in The Hague together with various civil society advocates to follow the hearings. 

Duterte’s “War on Drugs” is not the first context of mass atrocities in the Philippines’ history as an independent Republic. Marcos Sr.’s Martial Law regime (1972-1986) resulted in tens of thousands of killings, torture, disappearances, and detentions. In 2013, after decades of advocacy and multiple lawsuits in foreign jurisdictions, the Human Rights Victims Reparations and Recognition Act was signed into law for the benefit of the Martial Law victims. The law established a Human Rights Victims Claims Board (HRVCB) to assess and adjudicate claims for reparations from the Martial Law era. Out of 75,749 claimants, a total of 11,103 claims were granted. However, the implementation of the reparations mechanism faced several challenges. One of them was related to capacity and staffing, which was alleviated by volunteers from civil society and assistance from local governments. In my own time working for the HRVCB, I have seen how the gap between the occurrence of violations and the period for providing reparations has affected access to documentation and evidence. This has posed difficulties in proving claims for reparations, especially for victims from remote and impoverished locations. Transitional justice advocates in the Philippines have since emphasized the need for contemporaneous documentation in mass atrocity contexts. 

Crucially, early documentation of drug war killings into consolidated databases made tracking and reporting easy. For instance, the Ateneo School of Government led the consolidation of the “Drug Archive” dataset and mapping of killings. The University of the Philippines also developed a method for documenting drug killings. Aside from universities, photojournalists on the crime beat, dubbed as the “nightcrawlers”, captured and preserved the images of crime scenes. Fr. Flaviano Villanueva, a Catholic priest, has been at the forefront of memorialization efforts as he works with families of victims. Meanwhile, forensic evidence concealed or manipulated by state forces has been revisited by experts such as Dr. Raquel Fortun. As a result of these re- examinations, for instance, one father was able to acquire a court order granting the correction of an entry in the death certificate of his son — a nine-year old boy whose death from gunshot wounds was instead indicated as pneumonia-related. 

In the House of Representatives, lawmakers have filed bills for recognition and reparations for “War on Drugs” atrocities. Whether the measure advances in the lawmaking process is yet to be seen, especially with several Duterte family members holding congressional positions. Nevertheless, the Philippines’ repeated experience of mass atrocity emphasizes the significance of civil society and groundwork efforts in international justice. The impact of civil society is not lost on Duterte’s Defence: Nicholas Kaufman’s opening statement, for instance, alluded to the work of human rights groups, public interest lawyers, media, and even the Church, albeit in a disparaging tone.

Political Tides Amid the ICC Proceedings

In the year since Duterte’s arrest, much has changed politically for President Marcos Jr. He now faces wide public dissatisfaction over his administration’s handling of a major corruption scandal. In the midterm election following the arrest, Marcos Jr.’s camp suffered significant blows, diminishing his support base in the Congress. At the same time, Duterte himself was re-elected mayor of Davao despite being already detained in The Hague. As Marcos Jr. loses public favor, VP Duterte remains popular and unscathed and poised to run for the presidency in 2028.

Marcos Jr.’s brief glow when he mustered the will to send Duterte to The Hague has now faded in lockstep with his steady political decline. Political windows such as the one that led to the arrest could very well be catching lightning in a bottle, especially now, as Duterte has received a constant stream of support from his base all over the world. Necessities of political survival may have factored in for Marcos Jr. at the time, now proving to be costly for his presidency as the “Uniteam” base has fractured along Marcos and Duterte camps. 

Presidents and their popularity may wax and wane, along with any perception of their invincibility. In this sense, immunity of Heads of State is a legal doctrine which supplies the perception that it will be costly to try bringing them to account. When the opening presents itself, the doctrine inevitably confronts demands for justice. If one lesson may be gleaned from the Philippines, it is that building complex international criminal cases not only takes time, but also requires a measure of political timing. That, and the incalculable courage of those who gather evidence that will pass muster under the most chilling of circumstances.